The FCC is planning new net neutrality rules. And they could enshrine pay-for-play. - The Washington Post

Mon Apr 28 17:32:42 UTC 2014

On April 27, 2014 at 21:56 LarrySheldon at cox.net (Larry Sheldon) wrote:
 > On 4/27/2014 8:59 PM, goemon at anime.net wrote:
 > > If the carriers now get to play packet favoritism and pay-for-play, they
 > > should lose common carrier protections.
 > 
 > I didn't think the Internet providers were common carriers.

Here we go again!

There is more than one commonly used meaning for "common carriers".

There is a Communications Common Carrier as defined in the US
Communications Act of 1934 regulated under the FCC and as subsequently
amended by...blah blah blah.

And there is the much older common law usage which can apply to
trains, planes, taxis, delivery services, stagecoaches, etc which
basically recognizes that in general many services engaged in "COMMON
CARRIAGE".

They can't be assumed to know what (or who for that matter) they are
carrying for a fee -- when they don't. Obviously if one can prove they
did or should have known that's an exception.

So therefore shouldn't be assumed responsible for the contents if
illegal or whatever.

And not dragged into civil lawsuits if, e.g., someone claims that
carrying the package caused harm unless perhaps the carrier threw it
at the head of the recipient in which case they'd probably be
culpable.

Another requirement of a common law common carrier is that they
provide their service to the public without discrimination other than
ability to pay and whatever reasonable rules apply to everyone --
e.g., package can't be dripping liquid or weigh more than someone's
"before" picture in a nutrisystem ad.  The details of that of course
have been beaten to a fine powder in court cases and subsequent law
and regulation.

SOOOOO...an ISP (et al) can be considered a common law Common Carrier
without being a Common Carrier as defined in the Comm Act 1934 (and
subsequent, Telecom Act 1996, etc.)

ISPs don't in general have knowledge of the contents of the data they
carry except when you can prove that they did which is generally
assumed to be the exception or as a result of being served proper
notice.

  But I thought we agreed on all those terms in 1991 on the com-priv
  list? :-)

IANAL, if you mistake what I said for legal advice or accuracy you are
your own fool. But I don't have to be an animal expert to point out
y'all don't know the difference between a dog and a cat.

-- 
        -Barry Shein

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